Wednesday, 15 April 2015

The UK's general election: a fundamental change to UK/EU relations?

Steve Peers

The result of the current British
election campaign could be crucial for the future of the UK’s relations with
the European Union. Every UK-wide election party which is likely to win seats
in the election has now released its election manifesto, namely: the
Conservatives; Labour; Liberal Democrats; UKIP; and the Greens. It’s therefore
a good time to examine what the parties are saying about the EU, and what the
various post-election scenarios would mean for the UK’s relations with the EU.

According to pollsters, at
present the most probable outcome of the election is that no party will have an
overall majority, although there is a small possibility that either the Labour
party or the Conservative party will obtain enough seats for a majority. In the
absence of a majority, either the Conservative party or the Labour party will
try to obtain enough votes to govern from other parties, which are likely to
include parties running in Wales, Scotland and Northern Ireland. So it’s necessary to consider what these other
parties’ view on the EU is, and (more indirectly) whether they are likely to
support Labour or the Conservatives in office.

Of these parties, only the Welsh
Plaid Cymru has released its manifesto already, but I will refer to the
other parties’ positions to the extent that they have been announced to the
press: the Scottish Nationalist Party (SNP) and the Democratic Unionist Party
(DUP). I won’t discuss Sinn Fein, since it will not take up its seats in
Parliament, or the Northern Irish Social Democratic and Labour Party, since it
sits and votes with the UK-wide Labour party.

Party manifestos

There’s a lot in the manifestos
that touches upon EU-related policy. For instance, the Liberal Democrats
promise a ‘Digital Rights Bill’, which is closely related to EU laws on data
protection and net neutrality. EU law also has a big impact on environmental
law, consumer law and some other policies. But I will focus here on the key
question of ‘Brexit’, ie the UK’s withdrawal from the EU.

The Conservative party re-iterates
that party’s policy of renegotiating EU membership and then holding an in/out
referendum by the end of 2017. The renegotiation would focus on free movement (‘immigration’)
from the rest of the EU, although the manifesto also refers to changing the
principle of ‘ever closer union’ of EU Member States, and protecting the
interests of non-eurozone Member States.

The Labour party manifesto refers
to specific EU reforms, including EU immigration issues. It promises an in-out
referendum if there is a further transfer of powers from the UK to the EU This policy pledge is a development of current
legislation (the 2011 European Union Act),
which requires a referendum already in the event of such transfer of powers –
but not an in/out referendum. However,
the party does not promise an in-out
referendum relating to the renegotiation.
Indeed, they have made much of their opposition to that prospect.

The Liberal Democrats also
promise an in-out referendum if there is a further transfer of powers from the
UK to the EU. In fact, it’s their long-standing policy. They don’t call for a
referendum following renegotiation.

The UKIndependence Party reiterates its
long-standing policy in favour of the UK leaving the EU. It calls for a
referendum to be held ‘as soon as possible’, with the preferred question ‘Do you
want Britain to be a free, independent and sovereign democracy?’. They support
a negotiated withdrawal, rather than a unilateral departure.

The Green Party declares itself
in favour of the EU, although supports reform of it, and favours holding an
in/out referendum on EU membership. However, it seems unlikely that this party
would support a Conservative-led government.

Plaid Cymru declares that it is
pro-European, and makes no demand for a referendum. It also seems unlikely that
this party would support a Conservative-led government. The SNP support the UK’s EU
membership, but in the event of an in/out referendum, they would like the
public in each region of the UK to have a veto on leaving. This party has
expressly ruled out supporting a Conservative-led government. The Labour party
has in turn ruled out a coalition with the SNP, although it has not ruled out less
formal arrangements.

Finally, according to press
reports, the DUP supports an in-out referendum on EU membership. It’s not clear
if they would support renegotiation first, or would like an immediate
referendum along the lines of UKIP. The DUP has traditionally supported
Conservative governments in the past, although the party has declared its
willingness to negotiate with the Labour party as well. It’s not clear if they
would insist upon an EU referendum as the price of their support of a Labour government
(it would be superfluous to insist on one as a condition of supporting the
Conservatives). It’s also not clear if, like the SNP and Plaid Cymru, they
would insist that Northern Ireland would also have to vote in favour for Brexit
to be valid, but I doubt that this is their view, since they traditionally seek
stronger ties between Northern Ireland and the rest of the UK.

Analysing the manifestos

To make things simpler, I will
assume that politicians will stick to the policies that they are promising. Of
course, it’s always possible that politicians will break their promises; some might
say that this is about as certain as death and taxes. But politicians do keep some promises, and in some cases there are strong pressures on them
to keep those pledges. For instance, if David Cameron reneged on his
renegotiation policy, he would not last 24 hours as leader of the Conservative
party.

There are three different visions
of the UK’s future with the EU on offer: an immediate Brexit referendum
(favoured by UKIP); renegotiation followed by a referendum (supported by the
Conservatives); or renegotiation without
a referendum (supported by Labour and the Liberal Democrats).

The latter two parties do support
a referendum in the event of a transfer of powers from the UK to the EU, but that
would only happen if there were a Treaty amendment that other Member States
appear to have little enthusiasm for. In the event that Eurozone Member States
want new measures to ‘save the euro’, it’s possible to agree separate treaties
or EU legislation among themselves (as they have before), or, if necessary, to
agree on amendments to the EU Treaties which only apply to the Eurozone states,
or which otherwise give the UK an opt-out. In that case, there would be no transfer
of powers from the UK to the EU, and so no need for a referendum. Simply put, an in/out referendum under the
Labour or Liberal Democrat policies is very unlikely.

As for the details of the Brexit
policies, I have commented already on the details of the Conservatives’
intentions to renegotiate the free movement rules, and so won’t repeat these
points again.

While UKIP make much of the need
for an unbiased referendum campaign, their suggested question is clearly
biased. A genuine unbiased question would be: ‘Do you support the UK remaining
a member of the European Union, or leaving it?’, with boxes for ‘remain’ and ‘leave’
(so that neither side has the supposed advantage of being the ‘Yes’ vote).

The demand for regional voting on
a Brexit referendum in the different parts of the UK is clearly incompatible
with the constitution of the UK as it currently stands. It resembles the arrangements
in federal states like Canada, Australia and Switzerland, where there are both
national and regional thresholds for constitutional amendments. But the UK is
not such a state – though whether it should
be one is a rather broader question. In any event, it’s a moot point, since it
would only arise in practice if the SNP is supporting a Conservative government
– which it has said it won’t do.

Negotiations between parties

What happens if no party holds a
majority? The exact composition of the next government will then depend on
negotiations between the parties, which in turn depends on the exact numbers of
seats each gets. It’s too early to predict that now. But some basic points can
be made.

First of all, it’s simply not
true, as Professor Tim Bale has pointed out, that the biggest party always
gets to form the government. It’s rare for the second largest party to form one,
but it’s entirely legal and consistent with constitutional convention if it
does.

Secondly, the Liberal Democrats have
clearly indicated via press reports their willingness to compromise on the
Brexit issue, and to support the Conservative demand for a referendum subject
to discussion of the details, such as the width of the voting franchise and the
wording of the referendum question. A Brexit referendum is clearly a ‘red line’
(non-negotiable issue) for the Tories. So a renegotiation and referendum would
be likely to take place if the Tories and Liberal Democrats hold a majority of
seats between them, or if the Tories, Liberal Democrats and DUP hold a
majority.

Thirdly, a coalition or other
arrangement involving UKIP (Tory/UKIP; Tory/DUP/UKIP; Tory/LibDem/UKIP; Tory/LibDem/UKIP/DUP)
might have difficulty agreeing on the Brexit issue, due to the different policy
of UKIP. Some Conservative backbenchers would undoubtedly like to a see an
immediate Brexit vote, but others in the party, and the Liberal Democrats,
would not. But it would be awkward for UKIP to back down on its most important
policy.

If Labour and the Liberal
Democrats held a majority, or if Labour formed a government in most other
scenarios (Labour/SNP; Labour/LibDem/SNP; Labour/SNP/Green/PC etc) a Brexit referendum is highly unlikely.

Finally, in the improbable event
that Labour and the Conservative party do a deal, differences in the Brexit
referendum policy would be one of many obstacles. But the far bigger issue would
be managing the consequences of hell freezing over.

Passing EU-related legislation

Finally, would there be any
difficulties legislating for Brexit? It can be assumed that a Tory-led
government would immediately introduce a government bill to put into effect its
planned referendum. One potential problem here is the House of Lords, which
blocked a previous private member’s bill which aimed to put this policy into
law. The so-called ‘Salisbury Convention’ means that the House of Lords does
not block government bills which implement policies which were set out in the
leading party’s manifesto. According to the House of Lords itself, the convention
should only apply if all of the coalition
parties have set out the same policy – but only the Tories (and likely the DUP)
have set out a renegotiation and referendum plan in their manifesto. That could
lead to the House of Lords blocking the referendum Bill. Although a majority in
the House of Commons could use the Parliament Act to overrule the Lords, that
would mean a year’s delay in the law coming into force, which might complicate
renegotiation talks.

10 comments:

Hmmm...if the Conservatives were to get there way and have an in/out referendum in 2017 which saw the Out side win overall but with majority yes in Scotland, Northern Ireland and Wales, might this lead to pressure for a new Scottish referendum and for a yes to Scottish independence?

1. does not get the renegotiation of the EU membership terms as he desires

2. gets terms that fall far short of what he implied he would go for

3. he gets the terms and the british electorate vote against continued membership anyway...

because if that happens he would definitely need to bring the moderates Tories onto a plan to keep the UK within the EEA and EU customs union through rejoining EFTA and signing a customs union agreement with the EU. That would basically be the only way to placate Scotland and to avoid a potential nightmare of reintroducing customs border procedures between Northern Ireland and Ireland (something which hasn't been in place since 1993) and avoid the need to adhere to potential expensive rules of origin based trade as would have to occur under the EEA but outside the EU customs union.....

The discussion of "expensive" trade agreements should really be in the context of whether the EU is beneficial to trade. We are currently running a £60 bn pa trade deficit with the EU. See UK-EU trade.

A thought occurred to me..... Would it be possible in the event that the Tories get their referendum by 2017 and the results show strong support for remaining in among Scotland, wales and northern Ireland but a very narrow majority in favour of being out in England (and an overall slim majority in the referendum) for the UK to negotiate for itself to remain as a member but to remove England (excepting perhaps parliament and other uk national government buildings in London) from the being covered by the Treaties? A sort of Greenland option?

I know it might sound weird or silly, but I think it would be interesting to see such an option analysed from an EU law perspective ;-)

Hmmm...in which case it would have to be tied into devolution for England as well.

But then what about areas like Ceuta, Melilla, Heligoland and those German and Italian exclaves in Switzerland? If I'm not mistaken those territories don't have a distinct legal status with Spain, Germany and Italy respectively but they are excluded from aspects of EU law. Could something similar not happen with regards to England...in theory?

In theory, yes. But it would entail Treaty amendment and a major change to the British constitution. I doubt that other Member States would want to make a deal like this for England, which is vastly bigger than the other special territories you mentioned.

Well it seems the Conservatives might gain a majority after all unless things change during the course of the counting. With the Tories expected to get a slim majority of 329 seats and the DUP with 8 seats and UKIP with 1-2 seats there should be more than enough MPs to vote in favour of the Tories preferred route for renegotiation and then referendum.

Referendum 2017 is on it's way it seems....

And with it possibly a second Scottish referendum if:

1. The Tories don't get what they were banking on in renegotiations

2. The EU referendum fails as a result but with strong support for remaining in the EU in Scotland.